I will be quoting from Mark Levin’s book Liberty and Tyranny in this series of posts commenting on the concluding “take action” chapter titled A Conservative Manifesto. I hope that my work here will encourage you to acquire and read this phenomenal book, the most significant political book written since Goldwater’s The Conscience of a Conservative.
JUDGES
Limit the Supreme Court’s judicial-review power, which far exceeds the Framers’ intent, by establishing a legislative veto over Court decisions – perhaps a two-thirds supermajority of both houses of Congress, not dissimilar from the congressional override authority of a presidential veto.
It is an interesting thought. Under our three branches of government there exist a number of mechanisms for the different branches to act as a check against the other two branches. The legislative branch can thwart some actions of the executive branch, and the executive branch can obviously check the power of the legislative branch by exercising its veto power. But there is absolutely no check on the judicial branch, and it shows. The founding fathers never intended for the judiciary to be so all powerful.
Let’s take a look at how the three branches of government can act as a check on each other. It is important to note that there are essentially two ways that one branch of government can provide a check on abuses of power by the other two branches, blocking actions and responsive actions. Clearly the blocking actions provide a more immediate and effective check on power than the responsive actions.
Checks on the executive branch
The legislative branch can provide an immediate blocking check on the power of the executive branch in three ways. They can override a Presidential veto if they muster a two-thirds majority, and the Senate can reject Presidential nominees to the cabinet and Supreme Court as well as reject treaties signed by the President. Additionally, the legislative branch can respond to serious abuses of power by the President by impeaching (the House) and removing (the Senate) a President, though certainly without the same immediacy as the blocking checks previously described.
It is worth noting that congressional overrides of Presidential vetoes are fairly rare. The Congressional Research Service reported that “Prior to 1969, Congress overrode approximately 1 of every 18 (5.7%) regular vetoes. Since 1969, Congress has been more successful, overriding about 1 out of every 5 (18.3%) regular vetoes”.
The judicial branch can act as a check on the executive branch by overturning laws, actions, and regulations signed or implemented by the President. All of these are immediate blocking actions.
Checks on the legislative branch
There are essentially two methods that the executive branch can utilize to check the powers of the legislative branch, both of which are the more immediate blocking type of actions. The President can veto legislation passed by Congress, though I would argue that Presidents do not exercise this power enough. Additionally, although rare, the Vice-President can act as the tie-breaking vote in the Senate which was most recently exercised by Vice President Dick Cheney who did so 8 times.
The judicial branch can block actions of the legislative branch in much the same way that it can check the power of the executive branch by overturning laws passed by Congress.
Checks on the judicial branch
The legislative branch can check the power of the judicial branch, but only in a responsive fashion, in contrast to the more immediate blocking actions that act as checks on the power of the other legislative and executive branches. Congress can impeach a Supreme Court justice, but the only case in history where this action has been taken was against Samuel Chase who was subsequently acquitted by the Senate and remained on the court. Additionally, Congress can propose amendments that once passed cannot be overridden by the high court. Both of these checks on the power of the judicial branch are responsive actions that cannot truly check the actions of the court in the same way that the actions of the other two branches can be thwarted.
The executive branch has no power to check the actions of the legislative branch. Some would argue that the President’s role in appointing Supreme Court justices constitutes such power, but the dismal results of nominees like Souter and Kennedy completely undercut that position. Once a justice is in place, it takes egregious conduct to warrant removal. Oddly, history shows that simply ignoring the Constitution does not seem to justify that removal.
Speculation about the historical results of a Congressional override power
I must admit that I was initially opposed to Levin’s suggested constitutional change to implement a congressional override of Supreme Court decisions. However, after taking a deeper look at the lopsided checks on power among the three branches, I immediately changed my mind. This discussion would not be complete, however, without taking a cursory look at some controversial historic Supreme Court decisions and making some informed speculations as to how Congress would have voted if they had possessed this proposed override power. In many cases it is very difficult to determine how Congress would vote in such an override vote, but one can draw some conclusions with respect to civil rights cases because the Democrat Party was clearly the party of racism up until the late 60s at which point it morphed into the party of race hustlers.
